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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  YZ the people interpreting it. 87 Also, attending a concert and listening to a song on a tape may be quite difference experiences. 88 The value of information is thus generated by the activity and presence of a person rather than by the ownership of the content. 89 The fact that real-time performance and services generate value presents an interesting shift in where the information economics will be based on: relationship rather than possession. Building a relationship with a customer becomes more important rather than controlling the copies of the content. 90 Then the relationship of sender and receiver of information, and the depth of their interactivity, the value of what is sent depends on the extent to which each individual receiver has the receptors such as shared terminology, attention, interest, language, paradigm, that are necessary to render what is received meaningful. 91 An important possibility is presented here: Receiving information can often be as creative as generating it. Having access to the information, ability to choose, process, edit the information becomes more important. Therefore, the question of where the creativity lies, which is a critical one in copyright law, becomes more complicated, and the distinction between creators of information and users of information becomes fuzzy. In such a situation, a work itself may not be transformed and only mere reproduction of the initial work may be made almost in its entirety, but the use of the work can still be creative and transformative. When a user’s use of a work is so creative 87 Id. at 15. Esther Dyson points out that although principles are easy to come up with, matching them to specific instances is the intellectual exercise that adds true value. Id. Barlow similarly points out the “question and answer” relationships between authorities and those who seek their expertise. Barlow, supra note 81, at 15. 88 Dyson, supra note 86, at 11-12. 89 Barlow states that “the value of that relationship will reside in the quality of performance, the uniqueness of your point of view, the validity of your expertise, its relevance to your market, and ... the ability of that market to access your creative services swiftly, conveniently, and interactively.” Supra note 81 at 15. Dyson agrees by saying that “few kinds of content-based value that can be created on the net would include services, the selection of content, the presence of other people, and assurance of authenticity...” Supra note 86, at 32. 90 Dyson explains that a subscription would be a good way to solve the problem generated by network externalities and a need to distribute broadly. Id. at 3. Also see Katsh, supra note 1, at 225. 91 Dyson, Id.; Brian Kahin, The Internet Business and Policy Landscape, A NN . R EV . OF I NST . FOR I NFO . S TUD . 47, 66-67 (1997). Kahin also acknowledges that the ultimate value of the Internet or products and services on the Internet depends on the user’s software, her ability to use the software, and her skills at navigating the Internet.

Authors: Woo, Jisuk.
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background image
YZ
the people interpreting it.
87
Also, attending a concert and listening to a song on a tape
may be quite difference experiences.
88
The value of information is thus generated by
the activity and presence of a person rather than by the ownership of the content.
89
The fact that real-time performance and services generate value presents an interesting
shift in where the information economics will be based on: relationship rather than
possession. Building a relationship with a customer becomes more important rather than
controlling the copies of the content.
90
Then the relationship of sender and receiver of
information, and the depth of their interactivity, the value of what is sent depends on the
extent to which each individual receiver has the receptors such as shared terminology,
attention, interest, language, paradigm, that are necessary to render what is received
meaningful.
91
An important possibility is presented here: Receiving information can
often be as creative as generating it. Having access to the information, ability to choose,
process, edit the information becomes more important. Therefore, the question of where
the creativity lies, which is a critical one in copyright law, becomes more complicated,
and the distinction between creators of information and users of information becomes
fuzzy. In such a situation, a work itself may not be transformed and only mere
reproduction of the initial work may be made almost in its entirety, but the use of the
work can still be creative and transformative. When a user’s use of a work is so creative
87
Id. at 15. Esther Dyson points out that although principles are easy to come up with, matching them to
specific instances is the intellectual exercise that adds true value. Id. Barlow similarly points out the
“question and answer” relationships between authorities and those who seek their expertise. Barlow,
supra note 81, at 15.
88
Dyson, supra note 86, at 11-12.
89
Barlow states that “the value of that relationship will reside in the quality of performance, the
uniqueness of your point of view, the validity of your expertise, its relevance to your market, and ... the
ability of that market to access your creative services swiftly, conveniently, and interactively.” Supra note
81 at 15. Dyson agrees by saying that “few kinds of content-based value that can be created on the net
would include services, the selection of content, the presence of other people, and assurance of
authenticity...” Supra note 86, at 32.
90
Dyson explains that a subscription would be a good way to solve the problem generated by network
externalities and a need to distribute broadly. Id. at 3. Also see Katsh, supra note 1, at 225.
91
Dyson, Id.; Brian Kahin, The Internet Business and Policy Landscape, A
NN
. R
EV
.
OF
I
NST
.
FOR
I
NFO
.
S
TUD
. 47, 66-67 (1997). Kahin also acknowledges that the ultimate value of the Internet or products and
services on the Internet depends on the user’s software, her ability to use the software, and her skills at
navigating the Internet.


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